S.S. Sodhi, J. - (1.) WHERE in a regular departmental enquiry, the notice to show cause against the punishment proposed to be imposed upon the delinquent official, lists out all the punishments, major and minor, as contained in the relevant' service rules, is such notice to be taken to denote, denial of reasonable opportunity as envisaged by the Punjab Civil Services (Punishment and Appeal) Rules, 1970, (hereinafter referred to as 'Service Rules'), thereby vitiating the order of dismissal from service. Herein lies the controversy in appeal.
(2.) PREM Kumar the Plaintiff here, joined service on May 2, 1962 as leave reserve clerk in the court of the District Judge, Ropar, Later he was posted as ahlmad in the court' of the judicial Magistrate, Ropar and in due course came to be promoted as Assistant. On September 26, 1975, there was a complain by one Sarmukh Singh relating to the loss of some papers from the judicial record of a case decided by the Judicial Magistrate, Ropar, The Plaintiff was the ahlmad in that court during that time. A preliminary enquiry was held into the matter and on April 2, 1976, a charge -sheet in respect thereof was served upon the Plaintiff. The Plaintiff denied the charges and submitted his explanation which the District Judge did not find to be satisfactory. The Senior Sub -Judge was then appointed the Enquiry Officer, who, by his report of May 27, 1976 found against the Plaintiff, on all the charges and thereafter on September 16, 1976, the Plaintiff was served with a show -cause notice of the proposed punishment to be imposed upon him. As upon this notice. hinges the legality of the impugned order of dismissal, it deserves to be reproduced in extenso. It reads as under: Enquiry report from Shri P.C. Singal Senior Subordinate Judge Rupnagar (Enquiry Officer) has been received in this office in which you have been held responsible few the loss of documents in case Sarmukh Singh v. Surta Singh. One of the below noted penalties can be imposed upon you: 1. Censure. 2. Fine of an amount not exceeding one month's salary for his conduct or negligent in the performance of duties. Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. 3. WITHHOLDING of increments or promotion including stoppage at an efficiency bar; 4. REDUCTION to lower post or time scale or to a lower stage in time scale. Suspension. 5. REMOVAL and 6. DISMISSAL . You are directed to show cause as to why any one of the above noted penalties may not be imposed upon you. Your explanation should reach this office within two days from the receipts of this show -cause notice.
(3.) THE reasonable opportunity envisaged by the Service Rules is pari materia with what was required to be afforded under Article 311(2) of the Constitution of India, as it stood before the Forty -Second Amendment of the Constitution. This as laid down by the Supreme Court in Khem Chand v. Union of India : A.I.R. 1958 S.C. 300 includes: (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross -examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally; (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after The enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to The government servant. Later, in Hukum Chand Malhotra v. Union of India : A.I.R. 1959 S.C. 536 the Supreme Court had occasion to consider this matter again in the context of facts resembling the case in hand. The show -cause notice there served upon the delinquent official mentioned three punishments, namely, dismissal, removal or reduction in rank. The contention was raised that this notice did not comply with the essential requirements of Article 311(2) of the Constitution of India, in -as -much as it did not particularize the actual or exact punishment proposed to be imposed. The Court negatived this argument with observations: We see nothing wrong in principle in the punishing authority tentatively forming the opinion that the charges proved merit any one of the three major penalties and on that footing asking the Government servant concerned to show cause against the punishment proposed to be taken in the alternative in regard to him. To specify more than one punishment in the alternative does not necessarily make the proposed action any the less definite; on the contrary, it gives the Government servant better opportunity to show cause against each of those punishments being inflicted on him, which he would not have had if only the severest punishment had been mentioned and a lesser punishment not mentioned in the notice had been inflicted on him. To distinguish these observations from the present case, Mr. Sarup Singh, counsel for the Appellant laid great stress upon the fact that the punishing authority there had tentatively come to the conclusion that the charges proved warranted a major punishment and it then called upon the government servant concerned to show cause why one of the three major punishments be not imposed upon him, whereas here, all the penalties that could possibly be imposed, major and minor, was set out in the show -cause notice. Counsel thus argued that if the punishing authority had at all considered the matter, surely it could have tentatively decided, at least this much, whether a major or minor punishment was called for. pressed in aid here was again Hukum' Chand's case (supra) with attention being drawn to the observations preceding those quoted, namely, : "We desire to emphasise here that the case before us is not one in which the show -cause notice was vague or of such a character as to lead to the interence that the punishing authority did not apply its mind to the question of punishment to be imposed on the government servant." It, was, accordingly argued that it was apparent that the punishing authority had not applied its mind to the nature and gravity of the charges proved against the Appellant and what consequently should be the proper punishment to be proposed to be imposed upon him.;